Signs of conflict before first sitting

Parliament has not yet started and already it’s lawyers at 20 paces. It doesn’t augur well for how the new legislature might operate, especially when the stand-off increases the likelihood of litigation during this term.

The Solicitor-General has provided legal advice confined to a pairing arrangement between Labor and the Coalition that was sought after independent
Rob Oakeshott
turned his back on the speaker’s chair.

Stephen Gageler
, SC, has concluded the arrangement is constitutional and on this point he has the support of the Liberals’ independent legal adviser,
David Bennett
, QC. But as yesterday’s decision by Opposition Leader
Tony Abbott
confirms, it is effective only if it is voluntary.

On the other hand, shadow attorney-general
George Brandis
, SC, advised on a pairing arrangement between an independent MP and another MP that depended on the vote. He concludes it isn’t constitutional and the advice from Gageler provides some support for this view.

The two lawyers have advised on different questions but in a bid to provide political cover for Abbott to welch on a deal, Brandis yesterday sought to confuse the issue with further obtuse legal argument.

But Abbott’s real problem is political, not legal. He agreed to an arrangement that would see the Coalition losing a vote it could otherwise win.

On a division of 74-75, a speaker’s pair removes one crucial vote but still gives the speaker the casting vote to break the resulting tie. On contentious legislation such as the mining tax, it could make the difference between a bill passing or not. The Coalition was aware of the problem at the time of signing the deal but was happy to risk it so long as it gave them a chance of forming government.

Tellingly, the Brandis advice was only provided on Monday, two weeks after the deal was signed.